The Court of
Appeal for this district has overturned an injunction barring the City of Los
Angeles from enforcing its 2010 ordinance regulating medial marijuana
dispensaries.

Los Angeles
Superior Court Judge Douglas Sortino, writing Tuesday on assignment to Div.
Eight, said it was clear “from cases decided and a statute enacted after the
trial court rendered its decision” that there is no constitutional bar to, and
no state statutory preemption of, the city’s law.

The ordinance
regulates the number and geographic distribution of dispensaries within the
city, in part by shutting down those that had sprung up since the city adopted
an interim ordinance in 2007, as well as those that were operating at that time
but failed to register as that ordinance required.

All previously
registered dispensaries or collectives must reregister under the new law, which
will eventually reduce the number of such facilities to a total of 70,
distributed throughout the city on the basis of population density. Collectives
which have been cited for legal violations or have changed ownership will not
be allowed to reregister, and those located near schools, libraries, parks,
other collectives, or in other inappropriate locations will be forced to close
or move.

Recordkeeping
and Disclosure

Registered
collectives will also be required to meet new recordkeeping and disclosure
requirements, enabling police to determine whether the people it serves are
qualified medical marijuana patients under Proposition 215 and the Medical
Marijuana Program Act passed by the Legislature in 2003.

Los Angeles
Superior Court Judge Anthony Mohr enjoined enforcement of parts of the
ordinance in December 2010, concluding that limiting registration to those that
registered under the prior ordinance violates equal protection; that the MMPA
precludes the city from criminalizing violations of its own ordinance; that
shutting down collectives that did not register under the interim ordinance
without a hearing violates due process; and that the recordkeeping and
disclosure rules violate the state Constitution’s privacy clause.

Temporary
Ordinance

The city
subsequently enacted a “temporary urgency ordinance” that purports to cure the
defects identified by the trial court, such ordinance to remain in effect only
during the litigation or until permanent amendments to the 2010 ordinance are
enacted.

The Court of
Appeal rejected all four of Mohr’s conclusions.

There was no
equal protection violation, Sortino explained, because the city rationally
distinguished between those collectives that have been operating longer, and
which made an honest attempt to comply with the law, from those that have only
opened recently or refused to comply with the earlier law.

The plaintiff
clinics, he said, failed to satisfy their burden of showing that the distinction
fails to serve a legitimate government purpose.

There is no
conflict with the MMPA, he went on to say, because the statute “does not
expressly forbid local regulation in the area of medical marijuana use and, in
fact, expressly contemplates it.” The implied right of local governments to
regulate medical marijuana in the original legislation is now explicit, he
noted, because while the city’s appeal was pending, the Legislature amended to
the law to authorize “civil and criminal enforcement” of regulations regarding
the location and operation of facilities where medical cannabis is made
available.

No Due Process
Problems

The jurist also
brushed aside the trial judge’s due process concerns, noting that the city can
only shut down a clinic or punish its operators by initiating civil or criminal
proceedings, in which the operators will have full resort to normal statutory
and constitutional procedural protections.

Nor, he said,
does the right to privacy preclude the law’s enforcement.

Emphasizing the
heavy burden that the plaintiffs must meet to prevail in a facial challenge,
the judge wrote:

“To the extent
the respondents as collectives are asserting their own privacy rights,
we find no issue with either the record-keeping or disclosure requirements of
the Ordinance given the heavily regulated area in which the collectives
operate. Whether analyzed as creating an unreasonable expectation of
privacy or an invasion of a reasonable expectation of privacy justified by a
legitimate competing state interest, such entities are subject to greater
privacy intrusions than would be allowed in the context of individuals or more
ordinary businesses. Insofar as collectives are asserting the privacy
rights of their individual members or...asserting their own individual
privacy rights, we also find no invasion of privacy, based largely on similar
analysis.”

There was, he
noted, a good deal of evidence presented to the trial court that many
“so-called medical marijuana collectives” are actually for-profit businesses,
and that enough of them are engaged in criminal activity to force considerable
expenditure of police resources.

“Under these
circumstances, it would be entirely irrational to accord marijuana collectives
– as entities – greater privacy rights than pharmacies involved in the
distribution and use of traditional prescription drugs,” he wrote. “We find
that any expectation of privacy by a collective in the limited, and
nonintimate, information sought by the Ordinance to be unreasonable.”